The King on the application of ZOS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 31 October 2022 |
| Neutral Citation | [2022] EWHC 3567 (Admin) |
| Docket Number | No. CO/1158/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3567 (Admin)
Mrs Justice Foster DBE
No. CO/1158/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Miss S McGibbon (instructed by Morrison Spowart Solicitors) appeared on behalf of the Claimant.
Mr T Tabori (instructed by the Government Legal Department) appeared on behalf of the Defendant.
( )
On 24 October 2022, I heard the adjourned application of the Secretary of State for the Home Department (referred to here as “the SSHD” or “the Defendant”) for an extension of time within which to fulfil the obligations imposed upon her, with her consent, under a mandatory Order made by Mr Vikram Sachdeva KC, sitting as a Deputy Judge of the High Court, on 13 July 2022.
The Order required her to provide adequate accommodation to the Claimant and her two children, and was made after the hearing of a judicial review brought by the Claimant on the grounds that the SSHD was in breach of her known delegable duty to provide adequate accommodation under section 95 of the Immigration and Asylum Act 1999 and/or obligations under section 55 of the Border Citizenship and Immigration Act 2005.
The Defendant requested until 14 November 2022 to provide accommodation to the Claimant at the end of the hearing. I indicated that I was prepared to allow that extra time for provision of adequate housing, but until 1 December 2022, and would give my reasons on the first available date after the hearing, and also consider the Claimant's cross-application inviting the Court to make directions for a hearing to determine whether the SSHD had been in contempt of court by reason of her repeated failure to obey Court Orders. I indicated I would also consider the best mechanism for achieving the changed date. These are those reasons.
Background
The Claimant, who is known in these proceedings as Z-O-S, is an asylum seeker in this country. She has a very disabled son (“AS”), born on 26 April 2018, and a daughter aged about two. AS has severe cerebral palsy and cannot walk or stand properly or manage stairs. He suffers also from a number of conditions, including a speech and language disorder and developmental delay.
On 18 November 2021, the Claimant's request under section 95 of the IAA was granted by the Secretary of State, and she was afforded accommodation under the Act with her two young children, initially in a Clapham hotel. Thereafter, she was told to move to different housing provided through Clearsprings (“CRH”), the company engaged by the Secretary of State to provide accommodation in section 95 circumstances. She was removed to other accommodation on 26 November 2021 at 63 Briar Avenue in Croydon. That accommodation was, however, inadequate. The bathroom and lavatory were up a flight of about fifteen stairs, unclimbable by AS, and the facilities were shared with four other families. AS could not practice his walking, or do his physiotherapy either.
Following protracted correspondence between the Defendant and the Claimant's solicitors on 7 January, the Secretary of State granted the move to different accommodation. Absent any action on this promised move, a pre-action protocol letter was sent by solicitors on 2 February 2022.
Despite the efforts at escalation by Migrant Help, by March 2022 no move had been effected. On the 23 rd of that month, the Claimant slipped and injured herself carrying her son downstairs from the bathroom. An application for judicial review and interim relief were made on 30 March 2022.
After the Application for Judicial Review
On 23 March 2022, the Defendant had identified sixth floor accommodation to the Claimant with a lift and stated they were measuring wheelchair access. In early April, Poole J gave the Defendant a week to respond to the interim relief claim. An Acknowledgement of Service on 27 April maintained there had been no breach of the statutory duty under section 95 or section 55. The Claimant's enquiry as to progress from 26 April went unanswered.
On 10 May 2022, permission was granted in the judicial review and expedition ordered. Additional grounds and evidence from the Defendant was ordered by 31 May 2022 and finally delivered on 20 June, after a consensual extension until 14 June. The case was listed for 13 July 2022.
On 13 July, as stated, it came before Mr Vikram Sachdeva KC. On that occasion the Secretary of State admitted that Briar Avenue was not adequate and that further accommodation would be provided by 4.00 p.m. on 3 August 2022.
After the Judicial Review
The Order of 13 July had contained the following important recitals:
“ And upon the Defendant accepting that the accommodation provided to the Claimant at 63 Briar Avenue, Croydon, London SW16 3AB is not adequate, and accepting that it has acted in breach of its duty under section 95 of the Immigration and Asylum Act 1995;
“ And upon the Defendant also accepting that it has acted in breach of its duty under section 55 of the Borders, Citizenship and Immigration Act 2009;
“ And upon the Defendant accepting that the Claimant's family requires self-contained, wheelchair accessible accommodation in the London Borough of Southwark with sufficient space for the Claimant's son, AS, to continue his treatment and store the specialist equipment he requires, in particular his wheelchair;
“ And upon the Defendant indicating it is able to provide such accommodation within fourteen days of the hearing, absent ‘special circumstances’, by consent it is ordered …”
I observe in retrospect, perhaps regrettably, liberty to apply on notice to set aside or vary this Order was also included. This was clearly a final mandatory Order. Moreover, it had been consented to by the Defendant, through counsel. In my judgement, that phrase was unnecessary and possibly misleading as to the character of the Order.
The progress of provision under the Order was the subject of enquiry by solicitors for the Claimant shortly after the 13 July hearing and again on 18 July, and they asked to be kept up to date. They received an email on 19 July saying that the property was at 113 Wivenhoe Road and needed a stairlift and was available. Having heard nothing, at 15:06 on 2 August, a day before the obligation was to have been completed, they wrote to the Government Legal Department asking for urgent confirmation that the Claimant would be able to move the next day. The Defendant replied at 12:50 on 3 August saying:
“ I write to inform you that the SSHD regretfully will not be able to comply with the Court Order to provide the Claimant with adequate accommodation by no later than 3 August 2022. The SSHD intends to file an urgent application today to vary paragraph of Judge Sachdeva's [sic] Order dated 13 July 2022 so that the time for compliance is extended.”
On 3 August, the Government Legal Department sought an extension of time within which to comply with the terms of the Order. The Secretary of State utilised the N463 urgent applications procedure and filed the application shortly before 4.00 p.m. There was no sworn statement in support. A letter was sent to the Administrative Court office dated 3 August 2022. It is headed, “Urgent Application to Vary Order” and states:
“ The Defendant regrets to inform the Administrative Court that she is not in a position to provide the Claimant and her son with accommodation by today. The Defendant makes an application requesting the learned judge to vary his Order so that the time for compliance is extended. If the draft Order is not made, the Defendant would be prejudiced such that it would be unjust. Accordingly, the making of the draft Order would be in furtherance of the overriding objective.”
It gave as the reason for the urgency the fact that there was a Court Order in place which was yet to be complied with. It was asserted there would be no delay; the application had been prepared as swiftly as possible. It recounted the history and also stated that, on 13 April 2022, the Claimant had been provided with suitable ground-floor accommodation, but nonetheless would be moved from 63 Briar Avenue in due course – even though the inadequacy of Briar Avenue had been already expressly conceded (see above).
The application then stated that, on 13 July 2022, the date of the hearing before Mr Sachdeva KC, an address at 118 Wivenhoe Close, a two-bedroom flat, was proposed. The statement says:
“ The first-floor flat requires a stairlift to be fitted.”
The Defendant also said she could not give a date for compliance, but an update was offered to the Court for Friday, 5 August 2022. The Secretary of State requested, were she to need it, relief from sanctions under CPR 3.9 for the failure to comply with the 3 August Order. The Secretary of State accepted she was in breach of her obligations...
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